The EU: Hypocrisy, Hostility and Prejudice

EU’s hostile fixation with Israel and its settlements is based on a series of deliberately misleading and flawed legal and political assumptions.

The current dispute between the European Union and Israel emanates from the publication on June 30, 2013, of guidelines by the European Commission on the eligibility of Israeli entities, in territories administered by Israel since June 1967 as a result of the Six-Day War, for grants, prizes and financial instruments funded by the EU from 2014 onwards. The current commission notice reflects a number of decisions taken recently by EU bodies on how past EU-Israel agreements are to be applied.1

On December 10, 2012, the EU Foreign Affairs Council determined that “all agreements between the State of Israel and the EU must unequivocally and explicitly indicate their inapplicability to the territories occupied by Israel in 1967.”

The EU statement added that the determination also conforms to the EU’s long-standing position that “Israeli settlements are illegal under international law and with the non-recognition by the EU of Israel’s sovereignty over the occupied territories, irrespective of their legal status under domestic Israeli law.”2

Pursuant to the European Commission’s June 30 notice, the EU published a directive to its 28 member states, effective July 19, 2013, forbidding funding, cooperation, scholarships, research funds, or prizes to anyone residing in the Jewish settlements in the West Bank and East Jerusalem. The regulation requires that any agreement or contract signed by an EU country with Israel include a clause stating that the settlements are not part of the State of Israel and therefore are not part of the agreement.3

The directive includes a territorial clause stating that all agreements will be valid only within Israeli borders recognized by the European Union, meaning the borders prior to the 1967 Six-Day War. It forbids cooperation by European Union members with private or governmental bodies located beyond the “Green Line.” The European Commission notice states that its aim is “to ensure the respect of EU positions and commitments in conformity with international law on the non-recognition by the EU of Israel’s sovereignty over the territories occupied by Israel since June 1967.”

This directive complements intensive activity by the EU High Representative for Foreign Affairs, Catherine Ashton, devoted almost exclusively to the issue of Israel’s settlements, and repeated calls to EU foreign ministers to fully enforce EU legislation regarding the labelling of products from Israeli settlements, with a view to preventing such products from benefiting from lower tariffs, and to rendering them easily visible to European consumers and importers. As stated by Ashton: “Our consumers have the right to an informed choice; this initiative will help support our retailers to provide this. The correct labeling of products is necessary to ensure our consumers are not being misled by false information.”4

As such, the publication of the commission notice is the culmination of a concerted policy initiative led by Ashton, with active and substantive encouragement by the EU member governments and the official EU representation to Israel, directed against Israel’s settlements in Judea and Samaria [the West Bank], the aim of which is to press the Israeli government into making territorial and political concessions, by harming the products coming from the settlements.

Flawed Legal and Political Assumptions

This unprecedented and hostile EU fixation with Israel and its settlements, to the almost total exclusion of the other pressing issues in the Middle East, Europe, and throughout the world, is based on a series of long-standing and deliberately misleading and flawed legal and political assumptions regarding the illegality of Israel’s settlements and the status of the pre-1967 armistice lines as Israel’s border.

These assumptions are all the more misleading and misguided in that they totally negate or deliberately flout the historic and legal rights granted by the international community, including Europe, to Israel and the Jewish people in a series of international agreements and commitments. The assumptions totally ignore the indigenous rights of the Jewish people in the area, as protected by international declarations.

Similarly, they negate the very positions supported by the European states that endorsed UN Security Council Resolution 242 from 1967 calling for “secure and recognized boundaries,” and negate the EU’s own commitments as signatory and witness to the Oslo Accords, to honour the content of those accords, and not to predetermine and undermine specific negotiating issues including the final status of the territories, borders, settlements, Jerusalem, and other issues.

As such, the present EU policy, including the commission notice, specifically undermines the negotiating process by taking sides, and by pre-determining the negotiating issues of settlements, Jerusalem and borders. As such, this fixation prejudices and obviates any claim by the EU to impartiality, and precludes the EU from performing any function within the negotiating process.

Israel’s Rights Cannot Be Denied

The legality of Israel’s settlements stems from the historic, indigenous and legal rights of the Jewish people to settle in the area, granted pursuant to valid and binding international legal instruments recognized and accepted by the international community. These rights cannot be denied or placed in question.

They include the declaration unanimously adopted by the League of Nations, including the major European states, in the 1920 San Remo Declaration, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel as well as close Jewish settlement throughout.5 This included the areas of Judea and Samaria and Jerusalem. This was subsequently affirmed internationally in the League of Nations 1922 Palestine Mandate instrument,6 and accorded continued validity, up to the present day, by Article 80 of the UN Charter which determines the continued validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations).7

The “1967 Borders” Do Not Exist

The “1967 borders” do not exist, and have never existed. The 1949 Armistice Agreements entered into by Israel and its Arab neighbors, establishing the armistice demarcation lines, clearly stated that these lines “are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.” Accordingly, they cannot be accepted or declared to be Israel’s border.8

UN Security Council Resolutions 242 (1967) and 338 (1973) called upon the parties to achieve a just and lasting peace in the Middle East and specifically stressed the need to negotiate in order to achieve “secure and recognized boundaries.”9 The European state members of the Security Council approved that resolution.

The Geneva Convention Does Not Apply to Israel’s Settlements

The EU assumption regarding the illegality of Israel’s settlement policy is legally flawed, and ignores authoritative sources regarding the provenance and interpretation of Article 49 of the Fourth Geneva Convention (1949). This article prohibits the mass transfer of population into occupied territory, as practiced by Germany during the Second World War. It was neither relevant, nor was it ever intended to apply to Israel’s settlements.

According to the authoritative and official commentary by the International Committee of the Red Cross, published in 1958,10 as well as opinions by prominent international jurists, Article 49 relates to deportations of over 40 million people subjected to forced migration, evacuation, displacement, and expulsion. The vast numbers of people affected and the aims and purposes behind such a population movement speak for themselves. There is nothing to link such circumstances to Israel’s settlement policy.11

One may further ask if this is not a misreading, misunderstanding, or even distortion of that article and its context.

Contradicting the Oslo Accords

In the 1995 Israeli-Palestinian Agreement on the West Bank and the Gaza Strip, Israel and the PLO undertook to negotiate inter alia the issues of borders, Jerusalem and settlements, and undertook not act to change the status of the territories pending outcome of the permanent status negotiations. The EU signed and witnessed this agreement, and as such cannot now undermine it or take a position that is clearly ultra vires the terms of the agreement.12

Israel and the PLO agreed in the 1995 Interim Agreement (together with the EU, Egypt, Jordan, Russia, the U.S. and Norway as witnesses) on a division of their respective jurisdictions in the West Bank into areas A and B (Palestinian jurisdiction) and area C (Israeli jurisdiction).13 They defined the respective powers and responsibilities of each side in the areas they control. Israel’s powers and responsibilities in Area C include all aspects regarding its settlements – all this pending the outcome of the permanent status negotiations. This division was accepted and agreed upon by the Palestinians, and acknowledged by the international community, including the EU and the UN.

The Palestinians entered into the various agreements constituting what is known as the “Oslo Accords” in the full knowledge that Israel’s settlements existed in the areas, and that settlements would be one of the issues to be negotiated in the permanent status negotiations. Furthermore, the Oslo Accords impose no limitation on either side regarding planning, zoning, or construction of homes and communities in their respective areas of jurisdiction and control, pending the outcome of the permanent status negotiations.

The repeated use by the EU of the term “occupied Arab,” or “Palestinian territories” to refer to the area of Judea and Samaria has no basis in law or fact. Prior to 1967, there was no Palestinian state in the West Bank, which was under the control of the Hashemite Kingdom of Jordan. The area has never been determined to be Palestinian territory. Thus the continued EU usage of the term runs against the very concept of negotiations to resolve the dispute regarding these areas, supported by the EU, to determine their permanent status.

The EU Fixation with Israel’s Settlements

The EU fixation with Israel’s settlements, and the action presently being taken against Israel pursuant to its directive, is clearly incompatible with the EU’s standing as a member of the International Quartet, and serves to neutralize any pretentions the EU might have to serve a useful function in the negotiating process between Israel and the Palestinians.

The EU cannot presume to come with clean hands and claim to be an impartial element in the negotiating process. The EU has taken sides and as such, in its actions against Israel, it is undermining the negotiating process. Moreover, the rigid fixation of the EU to assert that its agreements with Israel must reflect the non-recognition of Israel’s sovereignty over any territory beyond the 1967 lines stands out in contrast to European policy toward other conflicts.

The EU has many free trade agreements and other commercial understandings with countries whose territorial boundaries are in dispute. The EU has been negotiating a free trade agreement with India, yet its applicability to Kashmir is not under discussion. An EU fisheries agreement from 2005 allows European fisherman to operate in Western Sahara, even though the EU does not recognize Moroccan sovereignty in this territory. In Israel, EU policy is likely to be perceived as a case of double standards, according to which Israel is not granted the same rights as other states, in defiance of the principle of sovereign equality.

Finally, the position and actions of the EU against Israel are all the more unfortunate and regrettable in light of the tragic Jewish history in Europe, which cannot be ignored or forgotten. One might have expected that realization of this factor would guide the wisdom and logic of the actions of the EU.

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About the Author

Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.

The opinions expressed in the comment section are the personal views of the commenters. Comments are moderated, so please keep it civil.

Visitor Comments: 12

(8)
elliot (aliyahu),
July 24, 2013 2:32 AM

It's Israel's responsibility to make a lasting peace.

All legalities and biblical declarations fly in the face of the sufferings of both Israelis and palestinian arabs. As the "holier" of the parties, it is Israel's responsibility to make a peace that solves everyone's problems in the region. That will require that neighbors have peace and space to prosper. Do unto others... As long as the arab population is not settled Israel will not be at peace. There is a path that the Orthodox has not tried- and that requires living-up to its commandments to be a light and to grant its neighbors peace despite its neighbors ignorance and hatred of Israel. This article is just more tit-for-tat, stooping to Israel's enemies' level.

anon,
July 25, 2013 5:53 PM

your next door neighbor

If your next door neighbor wanted nothing more than your death, are you sure your first act would be the "holy" act of making peace? In such a case, your first obligation (making it the truly "holy" action) is self-preservation. Making peace is an unaffordable luxury at that point. But if you take the action you suggest, I'm sure your neighbor will happily eulogize you.
"when one is rising up to kill you, rise up earlier to kill him" San ~ 72B [IF there is no alternative]

Arby Muller,
July 28, 2013 12:42 AM

Commonsense first

I agree completely, anon. as the "holiest" of the parties in this never-ending stand-off, Israel has one duty only- the protection of its people and the integrity of its land. Surrounded by barbaric hordes that know no limit to evil, butchery and indeed which are strangers to decency, humanity and the common human experience, Israel owes no one apologies. The EU is and has always been a morally corrupt, agenda-driven cotery of wannabe International players. They are pathetic. They speak drivel and pander to national socialist genetics built into the European psych.

(7)
Anonymous,
July 22, 2013 8:52 PM

EU HAS LOST ITS MIND OVER THE WEST BANK IN ISRAEL.

I HAVE READ THE ABOVE ARTICLE & HAVE REACHED THE ONLY CONCLUSION I CAN THINK ABOUT SAME,I E,EU DECISIONS ON ISRAEL & THE WEST BANK CAN ONLY BE DESCRIBED AS B--LS--T.THE EU & THE WORLD BETTER THINK THINGS OVER CAREFULLY BEFORE IT IS TOO LATE & WILL ULTIMATELY RESULT IN HUNDREDS OF THOUSANDS ,IF NOT MILLIONS OF UNNECESSARY DEATHS.

(6)
hooMati,
July 22, 2013 4:37 AM

Lack of knowledge in the world is our fault

Why don't we, who are the "Light to the nations," tell the world that the Old City of Jerusalem is in the "territories". Does the world dispute that Jerusalem has belonged to the fake "Palestinians" which Jews are the only real "Palestinians?"

(5)
jan,
July 21, 2013 10:26 PM

Israel vs Palestina

Hello,Every sunday, on the Marketplace of my hometown (in The Netherlands), there are people handling leaflets "demanding" the liberation of Palestina. One time I engaged into a discussion with one of these fellows. I told him that each time Israel gave land back, Israel was thanked with bombs and terrorist attacks. The guy didn't even hear me and started his "robot-mode-taped-lecture" (:-)) about how Israel this and Israel that. I got fed up and told him I found him to be anti-semitic. His reply was that I was a f...ing Jew (which I am not, nor f...ing, nor Jew).Thank you for your article, it gives me amuniton for the next time I feel wasting my time with these idiotsJan

(4)
Frankie,
July 21, 2013 9:11 PM

EU is wrong and ignores "Palestinian" concerns

The EU is completely wrong, as this article proves. In addition to its blatant bias, it ignores completely the fact the tens of thousands of "Palestinians" earn their living working for the very industries the EU wishes to punish.

Dvirah,
July 23, 2013 3:28 PM

The Proof of the Pudding

It is this very blindness on the part of the EU, and other such "Israel-bashers" which proves their hypocrasy.
Re negociations, I've stated elsewere that psychological analysis yields a mental age of 3-4 for the Palestinian leadership. One cannot negociate with a toddler.

(3)
Jossef,
July 21, 2013 7:00 PM

Too Much Legalize

Alan Baker, when you write an article for the general audience you need to translate all the legal vocabulary and to a common language. This article is acccurate but written for deplomats not for an average person.

Sonny Kosky,
July 22, 2013 11:01 AM

Keep to the legal argument

No - we need to stick to the correct legal argument. The EU should be challenged on every point by the legal agreements as already outlined. Why isn't there a mechanism to do just that in the EU. And next time the European elections come up we should challenge the candidates on where they stand vis a vis Israel.

(2)
Stanley Tee,
July 21, 2013 6:48 PM

Finally ....

finally, a prominent Israeli tells the truth! Now if only we can get the Israeli government to say all this LOUD AND CLEAR!! Instead of begging the EU and grovelling at Obama's feet and promising Kerry just about everything he demands, Netanyahu needs to stand up to all of them and say NO! These are our rights! Sure, we are prepared to negotiate away some of those rights in the name of peace, but that's up to us to decide, it's not up to you to demand.Instead, we give the appearance of weakness, which makes the EU and the rest of the world think that we have no right to Judea and Samaria and all of Jerusalem. It's more than past time to stop!

(1)
Frank Adam,
July 21, 2013 3:51 PM

File a Test Case

Stop arguing and get even: use the legal openings of the €U's own courts - NOT the Council of Europe Court of Human Rights.Get a Jewish NGO like "UN Watch" to raise a doctrine in €U court, "Why should these new rules on Israeli institutions in the ex -Jordanian West Bank otherwise the PA territories; not also apply to Moroccan institutions in West Sahara otherwise the Saharawi territories, and the Republic of North Cyprus otherwise the Turkish occupied and settled territory of Northern Cyprus?" This at least will poke Turkey for the Mavi Marmora and remind the Arab World they can also be got at. Best of all google Zaslavsky's power towers and build one at Timna - then the World will fall over itself to leave the petro-sheikh era.

I’m wondering what happened to the House of David. After the end of the Kingdom of Judah was there any memory what happened to King David’s descendants? Is there any family today which can trace its lineage to David – and whom the Messiah might descend from?

The Aish Rabbi Replies:

Thank you for your good question. There is no question that King David’s descendants are alive today. God promised David through Nathan the Prophet that the monarchy would never depart from his family (II Samuel 7:16). The prophets likewise foretell the ultimate coming of the Messiah, descendant of David, the “branch which will extend from the trunk of Jesse,” who will restore the Davidic dynasty and Israel’s sovereignty (Isaiah 11:1, see also Jeremiah 33:15, Ezekiel 37:25).

King David’s initial dynasty came to an end with the destruction of the First Temple and the Babylonian Exile. In an earlier expulsion King Jehoiachin was exiled by Nebuchadnezzar, together with his family and several thousand of the Torah scholars and higher classes (II Kings 24:14-16). Eleven years later the Temple was destroyed. The final king of Judah, Jehoiachin’s uncle Zedekiah, was too exiled to Babylonia. He was blinded and his children were executed (II Kings 25:7).

However, Jehoiachin and his descendants did survive in exile. Babylonian cuneiform records actually attest to Jehoiachin and his family receiving food rations from the government. I Chronicles 3:17:24 likewise lists several generations of his descendants (either 9 or 15 generations, depending on the precise interpretation of the verses), which would have extended well into the Second Temple era. (One was the notable Zerubbabel, grandson of Jehoiachin, who was one of the leaders of the return to Zion and the construction the Second Temple.)

In Babylonia, the leader of the Jewish community was known as the Reish Galuta (Aramaic for “head of the exile,” called the Exilarch in English). This was a hereditary position recognized by the Babylonian government. Its bearer was generally quite wealthy and powerful, well-connected to the government and wielding much authority over Babylonian Jewry.

According to Jewish tradition, the Exilarch was a direct descendant of Jehoiachin. The Talmud (Sanhedrin 5a) understands Genesis 49:10 – Jacob’s blessing to Judah that “the staff would not be removed from Judah” – as a reference to the Exilarchs in Babylonia, “who would chastise Israel with the staff,” i.e., who exercised temporal authority over the Jewish community. It stands to reason that these descendants of Judah were descendants of David’s house, who would have naturally been the leaders of the Babylonian community, in fulfillment of God’s promise to David that authority would always rest in his descendants.

There is also a chronological work, Seder Olam Zutta (an anonymous text from the early Middle Ages), which lists 39 generations of Exilarchs beginning with Jehoiachin. One of the commentators to Chronicles, the Vilna Gaon, states that the first one was Elionai of I Chronicles 3:23.

The position of Exilarch lasted for many centuries. The Reish Galuta is mentioned quite often in the Talmud. As can be expected, some were quite learned themselves, some deferred to the rabbis for religious matters, while some, especially in the later years, fought them and their authority tooth and nail.

Exilarchs existed well into the Middle Ages, throughout the period of the early medieval scholars known as the Gaonim. The last ones known to history was Hezekiah, who was killed in 1040 by the Babylonian authorities, although he was believed to have had sons who escaped to Iberia. There are likewise later historical references to descendants of the Exilarchs, especially in northern Spain (Catelonia) and southern France (Provence).

Beyond that, there is no concrete evidence as to the whereabouts of King David’s descendants. Supposedly, the great French medieval sage Rashi (R. Shlomo Yitzchaki) traced his lineage to King David, although on a maternal line. (In addition, Rashi himself had only daughters.) The same is said of Rabbi Yehuda Loewe of Prague (the Maharal). Since Ashkenazi Jews are so interrelated, this is a tradition, however dubious today, shared by many Ashkenazi Jews.

In any event, we do not need be concerned today how the Messiah son of David will be identified. He will be a prophet, second only to Moses. God Himself will select him and appoint him to his task. And he himself, with his Divine inspiration, will resolve all other matters of Jewish lineage (Maimonides Hilchot Melachim 12:3).

Yahrtzeit of Kalonymus Z. Wissotzky, a famous Russian Jewish philanthropist who died in 1904. Wissotzky once owned the tea concession for the Czar's entire military operation. Since the Czar's soldiers numbered in the millions and tea drinking was a daily Russian custom, this concession made Wissotzky very rich. One day, Wissotzky was approached by the World Zionist Organization to begin a tea business in Israel. He laughed at this preposterous idea: the market was small, the Turkish bureaucracy was strict, and tea leaves from India were too costly to import. Jewish leaders persisted, and Wissotzky started a small tea company in Israel. After his death, the tea company passed to his heirs. Then in 1917, the communists swept to power in Russia, seizing all of the Wissotzky company's assets. The only business left in their possession was the small tea company in Israel. The family fled Russia, built the Israeli business, and today Wissotzky is a leading brand of tea in Israel, with exports to countries worldwide -- including Russia.

Building by youth may be destructive, while when elders dismantle, it is constructive (Nedarim 40a).

It seems paradoxical, but it is true. We make the most important decisions of our lives when we are young and inexperienced, and our maximum wisdom comes at an age when our lives are essentially behind us, and no decisions of great moment remain to be made.

While the solution to this mystery eludes us, the facts are evident, and we would be wise to adapt to them. When we are young and inexperienced, we can ask our elders for their opinion and then benefit from their wisdom. When their advice does not coincide with what we think is best, we would do ourselves a great service if we deferred to their counsel.

It may not be popular to champion this concept. Although we have emerged from the era of the `60s, when accepting the opinion of anyone over thirty was anathema, the attitude of dismissing older people as antiquated and obsolete has-beens who lack the omniscience of computerized intelligence still lingers on.

Those who refuse to learn from the mistakes of the past are doomed to repeat them. We would do well to swallow our youthful pride and benefit from the teachings of the school of experience.

Today I shall...

seek advice from my elders and give more serious consideration to deferring to their advice when it conflicts with my desires.

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